Saturday, June 22, 2013

Constitution or Constipation?

CATO's Doug Bandow was a real sharp dude when we first met Back In The Day. He, Stephen Moore and several others were the young hard chargers at Ed Crane's growing think tank of upstart libertarian brainiacs making an impact on The Way We Always Do It on Capitol Hill. Here, Doug nails one of the giant tasks before us if the Republic is to have a chance...

Doug Bandow
The Supreme Court is finishing up its latest term, saving its most
controversial decisions for last. Americans venerate the Constitution, but
judges determine its meaning.
Unfortunately, the result of the judicial process vindicates German
Chancellor Otto von Bismarck, who famously said that no one should see his
sausages or his laws being made. As I point out in my latest Forbes online column, much of the
Constitution is treated like an antique wall decoration: although the federal
government is supposed to have only limited, enumerated powers, today it pretty
much does whatever it wants.
Unfortunately, there may be no way to avoid
judicial rulemaking. Louis Fisher of the Library of Congress argued: “Being
‘ultimate interpreter,’ however, is not the same as being exclusive
interpreter.”
It seems obvious that if you take an oath to support the Constitution, you
shouldn’t act in ways that violate the law. Former congressman and judge Abner
Mikva argued that a failure by Congress to consider constitutionality “is both
an abdication of its role as a constitutional guardian and an abnegation of its
duty of responsible lawmaker.”
Still, the judiciary long has had the final say. But that actually is
supposed to limit government and protect liberty. As I wrote on Forbes
online:

The final say logically goes to the judiciary, since the legislative and
executive branches pass and approve/execute laws, respectively, making them the
institutions in most need of constraint. Alexander Hamilton argued in Federalist
78 that limitations on government power “can be preserved in practice no other
way than through the medium of courts of justice, whose duty it must be to
declare all acts contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or privileges would
amount to nothing.”
In this way, the judiciary was supposed to protect individual liberty. In
introducing the Bill of Rights, James Madison told Congress: “If they are
incorporated into the Constitution, independent tribunals of justice will
consider themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power in the
Legislature or Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights.” (Tragically, this is no longer the
case.)

Unfortunately, too many judges no longer really “interpret” the Constitution.
That is why Madison’s “few and defined” powers for the national government have
become “everything and unlimited. Basically, legislative and executive branch
officials act however they like, subject only to judges, who decide however they
like. It is government by zeitgeist—if it feels good, do it.
That means the rest of us need to work extra hard to “defend and support” the
Constitution. It ain’t much of a bulwark for liberty these days, but it really
is about all we have.